Posted by Nydia Streets of Streets Law in Florida Divorce

Sometimes, parties rely on loans or other financial assistance from family or friends to pay their legal fees in a Florida divorce case. Can the fact that a party has funds available to them from third parties be used as a basis to make that party pay the opposing party’s attorney’s fees in a Florida divorce case? This was one issue appealed in the case Whittaker v. Whittaker, 4D20-641 (Fla. 4th DCA November 17, 2021).

By the time of the final hearing in the parties’ divorce case, they had been married 16 years. Three issues the trial court decided at the final hearing were equitable distribution, attorney’s fees and alimony. The court awarded the former wife durational and lump sum alimony based on imputing $125,000 of gross annual income to the former husband. The court also ordered the former husband to pay $500 toward the former wife’s attorney’s fees and costs until paid off. The former husband appealed.

First, the court looked at the issue of equitable distribution and concluded the trial court erroneously excluded from equitable distribution certain marital debts which were presented in evidence by the former husband and undisputed by the former wife. Therefore, the case was remanded for this to be corrected. Turning to alimony, the appellate court found the trial court improperly relied on the former husband’s gross income rather than net income amount to determine his ability to pay alimony. Therefore, the case was remanded for the court to recalculate alimony based on the former husband’s net income.

Last, the appellate court examined the award of attorney’s fees to the former wife. The court noted “The trial court found that Former Husband had the ability to pay for two reasons: (1) because Former Husband’s mother paid his attorney’s fees and costs of over $200,000 during the dissolution proceeding; and (2) based on Former Husband’s in-kind employment benefits and imputed income.” The court held “‘When determining a party’s ability to pay and a party’s need for attorney’s fees and costs, the general rule is that the trial court may only consider the ‘financial resources of the parties and not the financial assistance of family or friends.’’ Rogers v. Rogers, 824 So. 2d 902, 903 (Fla. 3d DCA 2002) (quoting Bromante v. Bromante, 577 So. 2d 662, 663 (Fla. 1st DCA 1991)). ‘An exception to this general rule is that income can be imputed based on gifts if the gifts are continuing and ongoing, not sporadic, and where the evidence shows that the gifts will continue in the future.’ Id. The trial court erred in considering Former Husband’s mother’s gifts because there was no evidence the gifts would continue in the future.”

If you are facing a Florida divorce, schedule a consultation with a Miami family law attorney to understand how the law may apply to the factors in your case.